Director of Public Prosecutions v El Achkar
[2016] VCC 34
•29 January 2016
| Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-15-00265
CR-15-02132
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMED EL ACHKAR |
---
| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 December 2015 |
| DATE OF SENTENCE: | 29 January 2016 |
| CASE MAY BE CITED AS: | DPP v El Achkar |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 34 |
REASONS FOR SENTENCE
---
Subject:Trial and plea – sentencing
Catchwords: Trafficking in a drug of dependence
Legislation Cited: Sentencing Act 1991
Cases Cited:Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342
Sherritt v The Queen [2015] VSCA 1
Sentence:Overall total effective sentence 32 months' imprisonment,
with overall minimum term 16 months---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Porceddu | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Mr M. Thomas Ms J Fayman | Grigor Lawyers |
HIS HONOUR:
1Mohammed El Achkar, on 1 December this year you pleaded guilty to one charge of trafficking in a drug of dependence, contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981. On 9 December, after a 4-day trial, you were found guilty by a jury of another instance of that offence.
2The maximum penalty for this offence is 15 years' imprisonment.
3You are currently aged 32, having been born on 17 September 1983, and you were 30 when you committed these offences on 16 and 23 January 2014. You have a criminal history about which I will go into detail later.
4The background to this matter is as follows.
5In September 2012, the Santiago Task Force initiated an investigation into the trafficking of methylamphetamine and firearms by an organised crime syndicate operating in the western suburbs of Melbourne.
6Investigators utilised covert operatives to purchase drugs and firearms from members of the syndicate. Investigators also obtained telephone intercepts to gather evidence of drug trafficking activities. An optical surveillance device and a listening device was also installed in Fadi Haddara's factory in Orange Street, Williamstown North.
7The circumstances of your offending are as follows.
8Fadi Haddara was the head of this criminal syndicate and utilised underlings, intermediaries and associates to conduct his drug trafficking and other criminal activities. Those associates were Dung Pham, Katrina Faulkner, Aysun Hanay, Fadi Afram, Meeishyan Quach, Khaled Kaddour, Elia El Azar and you, Mohammed El Achkar.
9Evidence of drug trafficking was obtained through:
· direct transactions between you and covert operatives;
· audio recordings of conversations between you and covert operatives;
· telephone intercept material of you discussing and arranging drug transactions;
· optical surveillance material of you trafficking drugs and firearms;
· listening device material of you discussing drug and firearm transactions;
· surveillance of you whilst drug transactions were being conducted; and
· evidence located during the execution of search warrants.
10Between 25 May 2013 and 15 March 2014, six covert operatives acting under a Controlled Operations Authority conducted 39 transactions with thirteen accused, one of whom was you.
11They purchased a total of 395 grams of methylamphetamine, two handguns and a sawn-off rifle. The total cost for the drugs and firearms was $155,250.
12As to Charge 1 on indictment E12547660.1 - traffick methylamphetamine - on 16 January 2014 at 9.03pm, you and co-accused Fadi Haddara spoke to one another over the telephone. This conversation was recorded by the police. During the call you organised to attend at Fadi Haddara's panel shop. The Crown alleged that this meeting was for the purpose of you selling methylamphetamine to Fadi Haddara.
13At 10.33pm you sent a text message to Haddara telling him that you were on your way.
14At 11.03pm you attended at Orange Street, Williamstown, which is a panel shop operated by Haddara. You had a conversation with Haddara and sold him more than two ounces but less than three ounces (approximately 56 grams) of “ice”, that is, methylamphetamine. You received $13,200 from Haddara for the sale of the methylamphetamine.
15The sale was captured on an optical surveillance device and a listening device operating in Haddara's office.
16You indicated an early intention to plead guilty to that charge.
17As to Charge 1 on indictment E12547660.2 - traffick methylamphetamine - at 2.28pm on 23 January 2014, a police covert operative using the assumed name of Papoulis called Khaled Kaddour to organise the purchase of methylamphetamine. Papoulis and Kaddour organised to meet at Haddara's panel shop at Orange Street, Williamstown where the sale would take place. The Crown alleged that the supplier of the methylamphetamine was you, Mr El Achkar.
18Between 6.15pm and 6.55pm Papoulis and Kaddour spoke over the telephone and made arrangements to meet. At 6.19pm Kaddour sent a message to Haddara asking him to contact you and ask you to hurry up as his “friend”, being a reference to Papoulis, was “here”.
19At 6.58pm Papoulis arrived at Haddara's panel shop in Williamstown. Papoulis met with Kaddour and was told that his supplier, you, was stuck in traffic. Kaddour, in the presence of Papoulis, attempted to contact you a number of times to find out how far away you were.
20At about 8.46pm Haddara spoke to you to find out where you were. By this stage Haddara had become impatient with you, telling you in a coded way that if you were unable to supply the methylamphetamine then he would source it from someone else. You were apologetic and told Haddara that you were in a cab on your way.
21At 9.33pm Kaddour spoke to you and you made arrangements to meet elsewhere. Kaddour told Papoulis that they were going to meet you in Lygon Street, Carlton. Unbeknown to Kaddour, he was being followed and watched by members of the Victoria Police State Surveillance Unit.
22At 9.55pm Papoulis followed Kaddour to Carlton and stopped in Argyle Place North. The following observations were made by members of the State Surveillance Unit:
· 10.05pm - Kaddour was observed by an operative to exit his vehicle and stand next to it. You were also noticed, carrying a large dark-coloured bag.
· 10.08pm - Kaddour was observed getting back into his vehicle and driving little distance before parking.
· 10.10pm - you were observed seated on the passenger side in Kaddour's vehicle with Kaddour seated in the driver's seat.
23At 10.08pm Kaddour telephoned Papoulis and directed Papoulis to drive his car to Kaddour's location. At about 10.09pm Papoulis pulled up next to Kaddour's vehicle. You were seated in the passenger's seat of this vehicle.
24Kaddour then got out of his vehicle and entered Papoulis' vehicle via the passenger side. Papoulis instructed Kaddour to place the clear resealable bag on the centre console of the vehicle, which he did. Papoulis then handed $9000 in cash to Kaddour. Kaddour then exited the vehicle and Papoulis then drove away.
25At 10.22pm you were observed entering the front passenger side of a yellow taxi. Police obtained images of you in the taxi taken at 10.23pm, shortly after Papoulis had been supplied the methylamphetamine by Kaddour.
26The substance was later analysed and found to be 27.8 grams of methylamphetamine with a purity of 70 per cent.
27On 5 February 2014, the police arrested you on other matters. You were arrested on 1 August 2014 in relation to these matters.
28I now turn to your personal circumstances.
29As I noted earlier, you are now 32 years old and you were 30 at the time of this offending. At the time of your arrest, you were unemployed and living in Doncaster. You continue to live at home with your parents and have claimed to have had a difficult childhood with a domineering and sometimes violent father.
30You have a developing criminal history which commenced in 2001 with an appearance at the Broadmeadows Magistrates' Court, just days before your 18th birthday, when you were convicted and fined for relatively minor summary offences.
31Some four years later you were back in that court on, amongst others, various driving charges for which you were again convicted and fined, and your licence was suspended for three months.
32In March 2007 you appeared at the Melbourne Magistrates' Court for mainly driving offences: this time you received a two-month prison term, wholly suspended for 12 months, your licence was again suspended for three months and you were again fined. Some two months later you appeared again in that court and were fined for non-cooperation with police.
33In October 2007 you appeared in this court on a charge of intentionally causing serious injury, for which you received a two-year prison term, 18 months of which was suspended for a period of two years.
34In February 2008 you were back in the Magistrates' Court for driving offences. You were given a two-month prison term, wholly suspended for 12 months and you were yet again fined.
35In October 2008 you were again in the Melbourne Magistrates' Court for driving offences: you were given a four-month prison term to be immediately served. You appealed that sentence in this court in June 2009 and the sentence was reduced to two months, wholly suspended for ten months.
36Your next court appearance was in the Melbourne Magistrates' Court in January 2013, where you were fined for giving a false name and address. In September 2013 you appeared in the Broadmeadows Magistrates' Court on various drug charges and you were gaoled for 12 months with a six-month non-parole period. Six weeks later you appeared in the Heidelberg Magistrates' Court on another drug charge and were fined $1000.
37In September 2014, you were convicted and sentenced on a charge of conduct endangering life and were sentenced to serve a community correction order.
38You appealed the sentence from the Magistrates' Court at Broadmeadows and on 13 February 2015 were re-sentenced to serve a community correction order for one year with 100 hours community service.
39I note that the current offences were committed whilst you were on appeal bail awaiting the hearing of that appeal.
40On the evidence of Mr Dieni, who is a very experienced drug and alcohol counsellor, Mr Thompson, who is a director of Recover Oz, your sister Khadeje El Achkar and a police report of May 2013, I accept that at the time of the commission of these offences you were in the grip of an ice addiction, that you underwent detoxification whilst in remand between 5 February and 6 March 2014 and that since 7 March until late July-August 2014 you have undertaken a residential drug treatment program.
41On 29 July 2014 you began and maintained a drug counselling course with Mr Dieni, maintained strict bail conditions and have successfully completed the first of your community correction orders and have almost completed the terms and conditions of the second community correction order. Your last offence was committed on 5 February 2014. Mr Dieni has expressed concern that further time in custody may impair the rehabilitation you have already undertaken.
42From the evidence it appears that you have made good progress with rehabilitation. Your sister gave evidence expressing the change in your personality and how you have become more engaged with the family.
43You have been working with your father's import-export business along with your brother. Imam Baha Yehia has spoken of the embarrassment that you have caused your family and the good relationship he has had with your family.
44Whilst there is some indications of you having experienced depression in your life you have not been taking any anti-depressant medication since 2007 and no evidence of any underlying mental health issues has been placed before me on your plea in mitigation.
45In mitigation, I take into account the submissions made by your counsel including:
· your plea of guilty for the offence committed on 16 January 2013 and the early stage at which it was indicated;
· your addiction to amphetamine at the time of this offending;
· your sustained application to rehabilitate yourself from that addiction;
· your ability to maintain the terms of two community correction orders;
· your difficult early life; and
· the continuing support you have from your father and family.
46Your counsel has submitted that in all the circumstances, the purpose or purposes for which a sentence is imposed can be achieved by a sentence that does not involve your further confinement in prison and which can be achieved by a suitability-directed community correction order or alternatively, a relatively short period of imprisonment followed by a suitably-directed community correction order. You have been assessed and found as suitable for such an order.
47The prosecution submits that given the serious and repetitive nature of the offending and the lack of any remorse shown for the second offending in the face of a strong prosecution case, nothing less than a sentence of imprisonment with an appropriate non-parole period is open.
48In his submissions on sentence, your counsel gave specific emphasis to the recent decision of the Court of Appeal in Boulton & Ors v The Queen[1]. I have given close attention to the principles expressed in that decision and to further expressions of the Court of Appeal on this subject in subsequent decisions.
[1] Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342
49In the case of Sherritt[2], the Court said as follows:
"The Court in Boulton emphasised that if the CCO is to serve the purpose which Parliament quite clearly envisaged for it, sentencing courts (including this Court) [that is, the Court of Appeal], need to rethink the conventional wisdom about whether prison is really the only option. The Court was at pains to spell out the grave disadvantages of imprisonment, both for the offender and for the community, and the unique advantages of a CCO in enabling real punishment to be imposed at the same time as advancing the offender's rehabilitation in a way no prison term ever can".
[2] Sherritt v The Queen [2015] VSCA 1
50In Boulton, the Court said as follows:
"The availability of the CCO dramatically changes the sentencing landscape. The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence.
“The CCO option offers the court something which no term of imprisonment can offer, namely, the ability to impose a sentence which demands of the offender that he/she take personal responsibility for self-management and self-control and (depending on the conditions) that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places. The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide.
“In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her. On this analysis, if defence counsel submits that a CCO would be appropriate, it is no answer for a prosecutor (or a judge) to say, ‘How could a CCO be appropriate given that an offence of this seriousness has always received imprisonment?’ As we have endeavoured to explain, that question should mark the beginning, not the end, of the court’s consideration.
“The views we have expressed are reinforced by the recent insertion into the Sentencing Act of s 5(4C). This provision came to force on
29 September 2014, after the completion of argument in the present proceeding. The new subsection provides as follows:A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.
….
“What is most powerful about s 5(4C) is that it prohibits the imposition of a sentence of imprisonment unless the sentencing court has paid specific and careful attention to:
(a)the purposes for which the sentence is to be imposed on the offender; and
(b)whether those purposes can be achieved by a CCO to which one or more of the specified (onerous) conditions is attached.
“The process of deliberation which this provision requires should assist in the reconceptualisation of sentencing options to which we have referred. In particular, that process will throw into much sharper focus the distinction we have sought to draw, between the narrow punitive purpose (and effect) of imprisonment, on the one hand, and the multi-purpose character of the CCO. The sentencing court should ask itself a question along the following lines:
Given that a CCO could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option?"
51I have given careful consideration to these principles in the context of the circumstances of your offending and your personal circumstances. In my view, the objective seriousness of this offending is such that a sentence to a term of imprisonment is the only appropriate option
52Trafficking in a drug of dependence is a prevalent crime and cause for condign punishment. Methylamphetamine (or “ice”) is a pernicious drug and its illicit use impacts markedly on the community. Trafficking on this scale, where you have committed successive instances of serious trafficking at a high level for the purposes of an organised network, means that principles of denunciation, general deterrence and the protection of the community become dominant sentencing considerations.
53Those who which to peddle in this mind-altering poison need to be aware that serious penalties will apply.
54Whilst your addiction to “ice” can be taken into account in some way in mitigation, it does not excuse your conduct in trafficking and especially at the level at which you did.
55As I have said, principles of denunciation, punishment and specific and general deterrence demand emphasis in the purposes for which the sentence is imposed. In light of your plea of guilty to 16 January offence and particularly maintenance of two community correction orders since the commission of the current offences, I am satisfied that you have achieved a significant level of rehabilitation and demonstrated a genuine capacity for further rehabilitation should you set your mind to it.
56For this reason, in the sentence I intend to impose I have allowed for a shorter non-parole period than that which I otherwise would have provided.
57I have also taken into account that whilst you pleaded guilty to the first charge, the quantity trafficked was twice as high as that on the second charge to which you went to trial and that the two transactions represented by the charges represented a course of conduct close in time.
58On Charge 1 on indictment E12547660.1 of trafficking in a drug of dependence on 16 January 2014 (“the first charge”), to which you pleaded guilty, you are convicted and sentenced to 18 months’ imprisonment.
59On Charge 1 on indictment E12547660.2 of trafficking in a drug of dependence on 23 January 2014 (“the second charge”), upon which a jury found you guilty, you are convicted and sentenced to 2 years’ imprisonment.
60The second charge is the base sentence.
61I direct that 8 months of the sentence imposed on the first charge be served cumulatively on the sentence imposed on the second charge.
62The total effective sentence is 2 years and 8 months' imprisonment.
63I direct that you serve a minimum of 16 months' imprisonment before being eligible for parole.
64The sentence starts today and I declare that under s.18(4) of the Sentencing Act 1991, the period of 51 days, not including today, is to be reckoned as a period of imprisonment already served under this sentence.
65For the purposes of s.6AAA of the Sentencing Act as to the first charge, I declare that but for your plea of guilty, I would have sentenced you on that charge to 2 years’ imprisonment with a non-parole period of 18 months.
66At the plea hearing the Crown sought an order for a forensic sample and I have made that order today for the reasons noted on the order, namely, that the seriousness of the offending warrants the making of the order, your prior convictions warrant the making of the order, the order is not opposed and the making of the order is in the public interest.
67I also need to inform you that if at the time of the request for the sample you do not consent to the taking of the mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr El Achkar?
68OFFENDER: No.
69HIS HONOUR: You do not? What is going to happen is that there will be a request for a sample for a mouth scraping for the purpose of taking a forensic sample of your DNA. Now, if you do not consent at the time of the taking of that sample, then the police may use reasonable force to enable that procedure to be conducted. That is all you need to understand. All right?
70OFFENDER: Okay, yep.
71HIS HONOUR: At the plea hearing, the Crown also sought a disposal order which was not opposed and I have made that order today. Is there anything from either counsel?
72MR PORCEDDU: No, Your Honour.
73MS FAYMAN: No, Your Honour.
74HIS HONOUR: All right, 10.30 Monday. Thank you.
‑ ‑ ‑
0